Gebler v. Gatti - Pennsylvania Superior Court - February 2, 2006
http://www.courts.state.pa.us/OpPosting/Superior/out/s52014_05.pdf
The trial court's finding of paternity by estoppel (PBE) was reversed (2-1). The parties were never married, Defendant-appellant held the child out as his own for 18 months, "under Mother's misrepresentation that he was the only one having sexual relations with Mother at the time of conception." Defendant ceased acting as the child's father when he got a private DNA test and learned that he was not the child's biological father. The appellate court said that the doctrine of PBE is "aimed at achieving fairness" by holding parties to the prior conduct. It held that to apply the doctrine here "would defy principles of equity...." One judge dissented.
Donald Marritz
MidPenn Legal Services
Tuesday, February 07, 2006
consumer protection - pleading - fraud v. misrepresentation - contract under seal - limitations
Christopher v. First Mutual Corp. - ED Pa. - January 20, 2006
http://www.paed.uscourts.gov/documents/opinions/06d0073p.pdf
pleading - fraudulent v. deceptive conduct
The district court found that under the catchall provision of the state consumer protection law, 73 P.S. sec. 201-2(xxi), which prohibits "fraudulent or deceptive conduct which created a likelihood of confusion or misunderstanding," it is "no longer necessary for a plaintiff to plead all of the elements of common law fraud to recover" under that provision, where a plaintiff is claiming deception rather than fraud.
It was noted that "courts have divided on whether a plaintiff must meet the heightened fraud pleading requirement," Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Ssuper. 2002) or a less strict requirement, Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427, 432 (ED Pa. 2002), and that the state supreme court had not yet addressed the issue.
statute of limitations - contract under seal
The court also held that the 20-year statute of limitations applied where the document contained the typed words "In witness whereof, I hereunto set my hand and official seal" and the word "seal" was next to each witness signature, 42 Pa. C.S. sec. 5525(a)(8) (contract under seal).
Donald Marritz, staff attorney
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/06d0073p.pdf
pleading - fraudulent v. deceptive conduct
The district court found that under the catchall provision of the state consumer protection law, 73 P.S. sec. 201-2(xxi), which prohibits "fraudulent or deceptive conduct which created a likelihood of confusion or misunderstanding," it is "no longer necessary for a plaintiff to plead all of the elements of common law fraud to recover" under that provision, where a plaintiff is claiming deception rather than fraud.
It was noted that "courts have divided on whether a plaintiff must meet the heightened fraud pleading requirement," Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Ssuper. 2002) or a less strict requirement, Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427, 432 (ED Pa. 2002), and that the state supreme court had not yet addressed the issue.
statute of limitations - contract under seal
The court also held that the 20-year statute of limitations applied where the document contained the typed words "In witness whereof, I hereunto set my hand and official seal" and the word "seal" was next to each witness signature, 42 Pa. C.S. sec. 5525(a)(8) (contract under seal).
Donald Marritz, staff attorney
MidPenn Legal Services
Friday, January 27, 2006
UC- suitable work - refusal of temporary work w/pay cut
Department of Education v. UCBR - Commonwealth Court - January 27, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1478CD05_1-27-06.pdf
Held, that claimant (CL) did not refuse suitable work, 43 PS 753(t), and was not disqualified under 43 PS 802(a) where:
a) she had only been unemployed two weeks at the time of the employer's job offer;
b) the offer was for temporary work;
c) CL had "favorable prospects of obtaining new [permanent] employment" ;
d) CL had just been placed on a civil service list for a permanent position;
e) the offer would have involved a 26% reduction in pay and loss of benefits;
f) ER did not inform the OES [sic] of the job offer, as required by 43 P.S.sec. 802(a)*
Pennsylvania courts "have developed a balancing test, considering the reduction in pay on one hand against he duration of unemployment on the other, with the weight of the former decreasing as the latter increases." The "'most important factor in this type of case is the length of time that the claimant has been unemployed.' "
The court said that our "supreme court has repeatedly recognized that a claimant is entitled to a 'reasonable opportunity' to find employment commensurate with her training and experience" and held that, under all of the above circumstances, CL had good cause for refusing the ER's offer.
Donald Marritz
MidPenn Legal Services
* This is footnote to say that this apparently dispositive issue was only mentioned in a footnote.
http://www.courts.state.pa.us/OpPosting/CWealth/out/1478CD05_1-27-06.pdf
Held, that claimant (CL) did not refuse suitable work, 43 PS 753(t), and was not disqualified under 43 PS 802(a) where:
a) she had only been unemployed two weeks at the time of the employer's job offer;
b) the offer was for temporary work;
c) CL had "favorable prospects of obtaining new [permanent] employment" ;
d) CL had just been placed on a civil service list for a permanent position;
e) the offer would have involved a 26% reduction in pay and loss of benefits;
f) ER did not inform the OES [sic] of the job offer, as required by 43 P.S.sec. 802(a)*
Pennsylvania courts "have developed a balancing test, considering the reduction in pay on one hand against he duration of unemployment on the other, with the weight of the former decreasing as the latter increases." The "'most important factor in this type of case is the length of time that the claimant has been unemployed.' "
The court said that our "supreme court has repeatedly recognized that a claimant is entitled to a 'reasonable opportunity' to find employment commensurate with her training and experience" and held that, under all of the above circumstances, CL had good cause for refusing the ER's offer.
Donald Marritz
MidPenn Legal Services
* This is footnote to say that this apparently dispositive issue was only mentioned in a footnote.
Tuesday, January 24, 2006
employment - ADA - medical exam/inquiry
Ward v. Merck & Co., Inc. - ED Pa. - January 9, 2006
http://www.paed.uscourts.gov/documents/opinions/06d0034p.pdf
Summary judgment granted to employer (ER) on Plaintiff's claim that he was terminated from his job in violation of the provision of the Americans with Disabilities Act, 42 USC sec. 12111(d), that prohibits a medical exam or inquiry about a disability, its nature or severity, "unless such examination or inquiry is shown to be job-related and consistent with business necessity."
The court found that there was "more than sufficient evidence" to justify the ER's medical inquiry in this case, where there were allegations that Plaintiff's job behavior and performance deteriorated badly.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/06d0034p.pdf
Summary judgment granted to employer (ER) on Plaintiff's claim that he was terminated from his job in violation of the provision of the Americans with Disabilities Act, 42 USC sec. 12111(d), that prohibits a medical exam or inquiry about a disability, its nature or severity, "unless such examination or inquiry is shown to be job-related and consistent with business necessity."
The court found that there was "more than sufficient evidence" to justify the ER's medical inquiry in this case, where there were allegations that Plaintiff's job behavior and performance deteriorated badly.
Donald Marritz
MidPenn Legal Services
Monday, January 23, 2006
consumer - insurance - duty of insured to cooperate in investigation of claim
Murphy v. Federal Insurance Company - ED Pa. - January 18, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0056P.pdf
Defendant's motion for summary judgment granted. Plaintiff breached his contract when he unreasonably refused to cooperate in the insurer's investigation of his claim, to the prejudice of the insurer.
Interpretation of an insurance contract is a question of law. Where a policy is ambiguous, it should be construed against the insurer. If the terms are clear and not ambiguous, the court must give effect to the plain language. Here there was a clear contractual duty of the insured to cooperate in the investigation. His refusal to do so had a prejudicial effect on the insurer.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/06D0056P.pdf
Defendant's motion for summary judgment granted. Plaintiff breached his contract when he unreasonably refused to cooperate in the insurer's investigation of his claim, to the prejudice of the insurer.
Interpretation of an insurance contract is a question of law. Where a policy is ambiguous, it should be construed against the insurer. If the terms are clear and not ambiguous, the court must give effect to the plain language. Here there was a clear contractual duty of the insured to cooperate in the investigation. His refusal to do so had a prejudicial effect on the insurer.
Donald Marritz
MidPenn Legal Services
UC - willful misconduct - refusal to obey ER direction - insubordination
ATM Corp. of America v. UCBR - Commonwealth Court - January 23, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1560CD05_1-23-06.pdf
Held, refusal of Claimant (CL) to agree to request of employer (ER) for background check was insubordination and willful misconduct.
CL had been an accounting clerk for ER for 4 years w/o incident. In February 2005, ER adopted a new policy and directed CL and all others in the accounting dept. to sign a consent for a background check. There was no ER rule at the time of CL's hire about such checks, although there was a rule about insubordination. CL refused to sign, claiming that the request was overbroad and unreasonably intrusive. ER advised CL that her continued refusal would be grounds for dismissal for insubordination. CL's job involved handling sensitive information, including credit card info, social security numbers, addresses, loan info, etc., and gave her access to large sums of money. There was a specific ER concern about identity theft.
The Court held that CL's refusal to consent to the background check violated the ER rule about insubordination, and that CL did not have good cause for her refusal, thus making her actions willful misconduct. It said that it was "beyond peradventure that Employer has a legitimate need to protect the confidential information of its customers to which accounting department employees, including Claimant, have daily access. A background check is a "reasonable way to protect that confidential information, particularly where demanded by Employer's financial partners and customers. Such background checks are not unique, which is why their occurrence must be disclosed by employers under the Fair Credit Reporting Act [15 USC sec. 1681a(h)]....[T]he Authorization Form conformed to the requirement of federal law." The court said the if a background check of the type identified in the FCRA was "too intrusive on Claimant, it is difficult to imagine for what employment positions it would ever be appropriate." The ER direction was "reasonable under the circumstances, and Claimant's refusal to cooperate was willful misconduct." In addition, the court said that the CL's failure to articulate specific reasons for her refusal "was itself a form of insubordination."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/1560CD05_1-23-06.pdf
Held, refusal of Claimant (CL) to agree to request of employer (ER) for background check was insubordination and willful misconduct.
CL had been an accounting clerk for ER for 4 years w/o incident. In February 2005, ER adopted a new policy and directed CL and all others in the accounting dept. to sign a consent for a background check. There was no ER rule at the time of CL's hire about such checks, although there was a rule about insubordination. CL refused to sign, claiming that the request was overbroad and unreasonably intrusive. ER advised CL that her continued refusal would be grounds for dismissal for insubordination. CL's job involved handling sensitive information, including credit card info, social security numbers, addresses, loan info, etc., and gave her access to large sums of money. There was a specific ER concern about identity theft.
The Court held that CL's refusal to consent to the background check violated the ER rule about insubordination, and that CL did not have good cause for her refusal, thus making her actions willful misconduct. It said that it was "beyond peradventure that Employer has a legitimate need to protect the confidential information of its customers to which accounting department employees, including Claimant, have daily access. A background check is a "reasonable way to protect that confidential information, particularly where demanded by Employer's financial partners and customers. Such background checks are not unique, which is why their occurrence must be disclosed by employers under the Fair Credit Reporting Act [15 USC sec. 1681a(h)]....[T]he Authorization Form conformed to the requirement of federal law." The court said the if a background check of the type identified in the FCRA was "too intrusive on Claimant, it is difficult to imagine for what employment positions it would ever be appropriate." The ER direction was "reasonable under the circumstances, and Claimant's refusal to cooperate was willful misconduct." In addition, the court said that the CL's failure to articulate specific reasons for her refusal "was itself a form of insubordination."
Donald Marritz
MidPenn Legal Services
Sunday, January 22, 2006
employment - public - speech - retaliaton - sec. 1983 - qualified immunity
Springer v. Henry - Third Circuit - January 18, 2006
http://www.ca3.uscourts.gov/opinarch/044124p.pdf
Lower court judgment under 42 USC 1983 affirmed for doctor who had been terminated from his job at a state hospital in retaliation for his criticism of the hospital administration (patient care and safety issues). Defendant's claim of qualified immunity rejected, since law prohibiting such termination was clear at the time.
Donald Marritz
MidPenn Legal Services
http://www.ca3.uscourts.gov/opinarch/044124p.pdf
Lower court judgment under 42 USC 1983 affirmed for doctor who had been terminated from his job at a state hospital in retaliation for his criticism of the hospital administration (patient care and safety issues). Defendant's claim of qualified immunity rejected, since law prohibiting such termination was clear at the time.
Donald Marritz
MidPenn Legal Services
ADA - $ damages - immunity
U.S. v. Georgia , U.S. Supreme Court - January 10, 2006
http://www.supremecourtus.gov/opinions/05pdf/04-1203.pdf
Held, To the extent that Title II of the Americans with Disabilities Act (ADA), 42 USC 12131 et seq., creates a private cause of action for money damages against states for conduct that actually violates sec. 1 of the 14th Amendment, it validly abrogates the state's sovereign immunity. The case involved a prisoner who claimed that prison officials deliberately refused to accommodate his disability related needs.
The majority opinion focused on possible violations of the 8th Amendment, applicable to the states through the 14th Amendment. The majority noted a disagreement on the Court "regarding the scope of Congress's 'prophylactic' enforcement powers under sec. 5 of the Fourteenth Amendment," but held that "no one doubts that sec. 5 grants Congress the power to 'enforce...the provisions' of the Amendment by creating private remedies against the States for actual violations of those provisions." (emphasis in original)
The concurring opinion of Justice Stevens emphasized that other constitutional rights may also be applicable in the disabled prisoner context, including the right of access to courts (Tennessee v. Lane, 541 U.S. 509 (2004)), abridgement of religious liberties, undue censorship, interference with access to the judicial process, and procedural due process. Justice Stevens also noted that "the state defendants have correctly chosen not to challenge the Eleventh Circuit's holding that Title II is constitutional insofar as it authorizes prospective injunctive relief against the State."
Donald Marritz
MidPenn Legal Services
http://www.supremecourtus.gov/opinions/05pdf/04-1203.pdf
Held, To the extent that Title II of the Americans with Disabilities Act (ADA), 42 USC 12131 et seq., creates a private cause of action for money damages against states for conduct that actually violates sec. 1 of the 14th Amendment, it validly abrogates the state's sovereign immunity. The case involved a prisoner who claimed that prison officials deliberately refused to accommodate his disability related needs.
The majority opinion focused on possible violations of the 8th Amendment, applicable to the states through the 14th Amendment. The majority noted a disagreement on the Court "regarding the scope of Congress's 'prophylactic' enforcement powers under sec. 5 of the Fourteenth Amendment," but held that "no one doubts that sec. 5 grants Congress the power to 'enforce...the provisions' of the Amendment by creating private remedies against the States for actual violations of those provisions." (emphasis in original)
The concurring opinion of Justice Stevens emphasized that other constitutional rights may also be applicable in the disabled prisoner context, including the right of access to courts (Tennessee v. Lane, 541 U.S. 509 (2004)), abridgement of religious liberties, undue censorship, interference with access to the judicial process, and procedural due process. Justice Stevens also noted that "the state defendants have correctly chosen not to challenge the Eleventh Circuit's holding that Title II is constitutional insofar as it authorizes prospective injunctive relief against the State."
Donald Marritz
MidPenn Legal Services
Saturday, January 21, 2006
UC- partial benefits - actual earnings v. potential earnings
Jehrio v. UCBR, Commonwealth Court, January 20, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/1699CD05_1-20-06.pdf
This case involves one week, during which the claimant (CL) -- a full-time banquet server -- worked one day, took one day vacation, and no work was available for 5 days. The Board held that the CL was entitled to partial benefits, 43 P.S. sec. 753(u), less her potential earnings on the vacation day, pursuant to UC regs, 35 Pa. Code sec. 65.71
The Court reversed, holding that the regulation and the Board's decision were in conflict with the statute, 43 P.S. 804(d)(1, which directs that partial benefits be reduced by a claimant's actual earnings on the vacation day -- in this case, her vacation pay ($52), which was considerably less that her potential earnings ($218.50 -- hourly wage plus tips), had she worked that day.
Noting the remedial nature of the UC law, the court held that "[i]f the Employer affords employees vacation days, and pays for those vacation days, it would be unfair to penalize those employees and require them to report potential earnings for a day that the Employer agreed they did not have to work. If Employer prevailed, employees could never request a vacation day if work was available to them without being penalized because they would always be required to deduct their potential earnings for the day rather than the vacation pay employer actually paid them."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/1699CD05_1-20-06.pdf
This case involves one week, during which the claimant (CL) -- a full-time banquet server -- worked one day, took one day vacation, and no work was available for 5 days. The Board held that the CL was entitled to partial benefits, 43 P.S. sec. 753(u), less her potential earnings on the vacation day, pursuant to UC regs, 35 Pa. Code sec. 65.71
The Court reversed, holding that the regulation and the Board's decision were in conflict with the statute, 43 P.S. 804(d)(1, which directs that partial benefits be reduced by a claimant's actual earnings on the vacation day -- in this case, her vacation pay ($52), which was considerably less that her potential earnings ($218.50 -- hourly wage plus tips), had she worked that day.
Noting the remedial nature of the UC law, the court held that "[i]f the Employer affords employees vacation days, and pays for those vacation days, it would be unfair to penalize those employees and require them to report potential earnings for a day that the Employer agreed they did not have to work. If Employer prevailed, employees could never request a vacation day if work was available to them without being penalized because they would always be required to deduct their potential earnings for the day rather than the vacation pay employer actually paid them."
Donald Marritz
MidPenn Legal Services
Sunday, January 15, 2006
debt collection - "debt collector" - vicarious liability
Flamm v. Sarner & Associates and John Matusavage -- ED Pa. - January 4, 2006
http://www.paed.uscourts.gov/documents/opinions/06D0022P.pdf
Defendants' motion for summary judgment denied in a case in which Plaintiff sued law firm and Matusavage, whom she alleged was its employee, for M's actions in trying to collect on a judgment for a doctor's bill. Matusavage (M) went to P's employer several times, accused the P of being a "sneaky thief" who had stolen thousands of dollars from the creditor-doctor, that the employer (ER) could be "in trouble" if it had people like P as employees, and that the next time M went to the ER, he would bring a sheriff and P would be arrested.
law firm as "debt collector"
The law firm defendant was held to be a "debt collector" under the Fair Debt Collection Practices Act, 15 USC sec. 1692 et seq, i.e., a person whose principal business it is to collect debt, or who "regularly collects or attempts to collect debts owed to or due to another." The law firm "consistently has a small percentage of debt collections cases....a consistent taking and handling of debt collection cases" The court held that given this and other evidence, a "reasonable jury could find that" the law firm defendants are debt collectors under the FDCPA.
law firm liability for act of employee or indpt. contractor
Plaintiff claimed Matusavage was the law firm's employee. The firm said that M was an independent contractor, and that it was not liable for his actions. The court noted that there is "relatively little case law on the subject of vicarious liability under the FDCPA" but that "there are cases supporting the notion that an entity which itself meets the definition of 'debt collector' may be held vicariously liable for unlawful collection activities carried out by another on its behalf.'" Given this, summary judgment for D on this issue was held to be "inappropriate."
"ascertainable loss" under the state consumer protection law, 73 P.S. sec. 2270.1 et seq.
Defendants claimed that Plaintiff did not suffer an "ascertainable loss of money or property" and thus could not recover damages under the state consumer protection law, now known as Fair Credit Extension Uniformity Act (FCEUA), 73 P.S. sec. 2270.1 et seq. Noting that Plaintiff had stated a claim under the FDCPA, the court summarily rejected this claim, stating that "[i]t remains for [plaintiff] to present to a jury her 'ascertainable damages' for which she may recover 'actual damages or one hundred dollars ($100), which is greater.'"
defamation and civil conspiracy
The court also rejected defendants' summary judgment motion on these issues, noting a "genuine issue of material fact" on the defamation claim, and that "[q]uestions are raised which prevent" such action on the conspiracy claim.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/06D0022P.pdf
Defendants' motion for summary judgment denied in a case in which Plaintiff sued law firm and Matusavage, whom she alleged was its employee, for M's actions in trying to collect on a judgment for a doctor's bill. Matusavage (M) went to P's employer several times, accused the P of being a "sneaky thief" who had stolen thousands of dollars from the creditor-doctor, that the employer (ER) could be "in trouble" if it had people like P as employees, and that the next time M went to the ER, he would bring a sheriff and P would be arrested.
law firm as "debt collector"
The law firm defendant was held to be a "debt collector" under the Fair Debt Collection Practices Act, 15 USC sec. 1692 et seq, i.e., a person whose principal business it is to collect debt, or who "regularly collects or attempts to collect debts owed to or due to another." The law firm "consistently has a small percentage of debt collections cases....a consistent taking and handling of debt collection cases" The court held that given this and other evidence, a "reasonable jury could find that" the law firm defendants are debt collectors under the FDCPA.
law firm liability for act of employee or indpt. contractor
Plaintiff claimed Matusavage was the law firm's employee. The firm said that M was an independent contractor, and that it was not liable for his actions. The court noted that there is "relatively little case law on the subject of vicarious liability under the FDCPA" but that "there are cases supporting the notion that an entity which itself meets the definition of 'debt collector' may be held vicariously liable for unlawful collection activities carried out by another on its behalf.'" Given this, summary judgment for D on this issue was held to be "inappropriate."
"ascertainable loss" under the state consumer protection law, 73 P.S. sec. 2270.1 et seq.
Defendants claimed that Plaintiff did not suffer an "ascertainable loss of money or property" and thus could not recover damages under the state consumer protection law, now known as Fair Credit Extension Uniformity Act (FCEUA), 73 P.S. sec. 2270.1 et seq. Noting that Plaintiff had stated a claim under the FDCPA, the court summarily rejected this claim, stating that "[i]t remains for [plaintiff] to present to a jury her 'ascertainable damages' for which she may recover 'actual damages or one hundred dollars ($100), which is greater.'"
defamation and civil conspiracy
The court also rejected defendants' summary judgment motion on these issues, noting a "genuine issue of material fact" on the defamation claim, and that "[q]uestions are raised which prevent" such action on the conspiracy claim.
Donald Marritz
MidPenn Legal Services
Saturday, January 14, 2006
housing discrimination - race - predatory lending
McGlawn v. Pa. Human Relations Commn. - Cmwlth. Court - January 13, 2006
http://www.courts.state.pa.us/OpPosting/CWealth/out/2763CD04_1-13-06.pdf
In a case of first impression, the court held that the Pa. Human Relations Act (PHRA), 43 P.S. 955(h), extends to a sub-prime mortgage broker's predatory lending activities such as reverse redlining. The court relied on federal precedent under the Fair Housing Act, 42 USC 3605, which is very similar to the PHRA, Hargraves v. Capital City Mortgage Corp., 140 F.Supp. 2d (DDC 2000). The court found that the evidence showed that the broker's lending practices and terms were predatory and unfair and that the broker intentionally targeted the plaintiff and the class because of their race, and that the practices had a disparate impart on the basis of race.
predatory character of the loans
The case has an extensive discussion of predatory lending, defining it as including: a) unreasonably high interest rates (more than point points above prime); b) loans based on the value of the asset securing the loan rather than the borrower's ability to repay; c) excessive loan servicing fees; d) targeting of a certain population on unfair or onerous terms which do not meet the borrower's needs; e) a strong likelihood that the borrower will be unable to repay the loan; f) balloon payments; g) prepayment penalties; etc etc.
broker liability
The court rejected the broker's argument that the it should not be liable because it had not approved the loans or actually loaned money. The court noted that the broker was "significantly involved in making the loan" as the middleman who creates the loan opportunity. The customer relies on the broker and expect that the broker will be able to get the best available deal. The borrower deals exclusively with the broker and never actually meets the lender; in the borrower's mind, the broker is the lender. A mortgage broker owes a fiduciary duty to its customers. In re Barker, 251 B.R. 250 (ED Pa. 2000). The PHRA applies to brokers. The broker's activities were a substantial part of the loan transactions at issue.
discrimination
There was substantial evidence, including extensive advertising in the African-American community, a) that the broker intentionally targeted a protected class and b) that its policies and practices had a disparate impart on the basis of race. The PHRC established a prima facie case and rebuttable presumption of discrimination which the broker failed to rebut with some legitimate non-discriminatory reasons for its actions or that its lending practices were legitimate.
damages
The court affirmed the part of the PHRA damage award consisting of monies paid to the broker out of the loan proceeds for items benefiting the broker but not the lender. The court reversed the damage award for the difference between the total interest on the predatory loan v. what the borrowers would pay on a loan at the prevailing rate, due to problems with defining the time frame and the proper credit rates that would be available to the borrowers. However, the court held that the borrowers were entitled to recover damages of this nature. The court also upheld the PHRA's authority to award damages for embarrassment and humiliation, as well as the PHRA's award of a civil penalty to each borrower/complainant.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/CWealth/out/2763CD04_1-13-06.pdf
In a case of first impression, the court held that the Pa. Human Relations Act (PHRA), 43 P.S. 955(h), extends to a sub-prime mortgage broker's predatory lending activities such as reverse redlining. The court relied on federal precedent under the Fair Housing Act, 42 USC 3605, which is very similar to the PHRA, Hargraves v. Capital City Mortgage Corp., 140 F.Supp. 2d (DDC 2000). The court found that the evidence showed that the broker's lending practices and terms were predatory and unfair and that the broker intentionally targeted the plaintiff and the class because of their race, and that the practices had a disparate impart on the basis of race.
predatory character of the loans
The case has an extensive discussion of predatory lending, defining it as including: a) unreasonably high interest rates (more than point points above prime); b) loans based on the value of the asset securing the loan rather than the borrower's ability to repay; c) excessive loan servicing fees; d) targeting of a certain population on unfair or onerous terms which do not meet the borrower's needs; e) a strong likelihood that the borrower will be unable to repay the loan; f) balloon payments; g) prepayment penalties; etc etc.
broker liability
The court rejected the broker's argument that the it should not be liable because it had not approved the loans or actually loaned money. The court noted that the broker was "significantly involved in making the loan" as the middleman who creates the loan opportunity. The customer relies on the broker and expect that the broker will be able to get the best available deal. The borrower deals exclusively with the broker and never actually meets the lender; in the borrower's mind, the broker is the lender. A mortgage broker owes a fiduciary duty to its customers. In re Barker, 251 B.R. 250 (ED Pa. 2000). The PHRA applies to brokers. The broker's activities were a substantial part of the loan transactions at issue.
discrimination
There was substantial evidence, including extensive advertising in the African-American community, a) that the broker intentionally targeted a protected class and b) that its policies and practices had a disparate impart on the basis of race. The PHRC established a prima facie case and rebuttable presumption of discrimination which the broker failed to rebut with some legitimate non-discriminatory reasons for its actions or that its lending practices were legitimate.
damages
The court affirmed the part of the PHRA damage award consisting of monies paid to the broker out of the loan proceeds for items benefiting the broker but not the lender. The court reversed the damage award for the difference between the total interest on the predatory loan v. what the borrowers would pay on a loan at the prevailing rate, due to problems with defining the time frame and the proper credit rates that would be available to the borrowers. However, the court held that the borrowers were entitled to recover damages of this nature. The court also upheld the PHRA's authority to award damages for embarrassment and humiliation, as well as the PHRA's award of a civil penalty to each borrower/complainant.
Donald Marritz
MidPenn Legal Services
Sunday, January 08, 2006
employment - ADEA - FRCivP 6(e) - applic. to EEOC right-to-sue letters
DeFrancesco v. Weir Hazleton - ED Pa. - December 20, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1513P.pdf
Plaintiff filed an age discrimination complaint in court on the 92nd day after his EEOC right-to-sue letter was mailed to him. The lower court initially applied FRCivP 6(e), which provides for an extra 3 days to file when a document is mailed.
On a motion for reconsideration by the defendant-employer, however, the district court noted that a 2001 amendment to Rule 6(e) made it applicable only to pleadings, motions, and other court papers, i.e., not a document such as an EEOC right-to-sue letter.
The court held that the weight of judicial authority would justify continued application of the 3-day mailing to EEOC right-so-sue letters, given its consistent continued application even after the amendment to Rule 6(e), but pointed out a "tension...between Rule 6(e)'s amendment...and its continued application to EEOC right-to-sue letters....[W]e are presented with a jurisprudential Mobius strip.
The district court certified the case for interlocutory appeal to the 3d Circuit to answer the question: "Does Federal Rule of Civil Procedure 6(e), as amended effective December 1, 2001, continue to apply to EEOC right-to-sue letters?"
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1513P.pdf
Plaintiff filed an age discrimination complaint in court on the 92nd day after his EEOC right-to-sue letter was mailed to him. The lower court initially applied FRCivP 6(e), which provides for an extra 3 days to file when a document is mailed.
On a motion for reconsideration by the defendant-employer, however, the district court noted that a 2001 amendment to Rule 6(e) made it applicable only to pleadings, motions, and other court papers, i.e., not a document such as an EEOC right-to-sue letter.
The court held that the weight of judicial authority would justify continued application of the 3-day mailing to EEOC right-so-sue letters, given its consistent continued application even after the amendment to Rule 6(e), but pointed out a "tension...between Rule 6(e)'s amendment...and its continued application to EEOC right-to-sue letters....[W]e are presented with a jurisprudential Mobius strip.
The district court certified the case for interlocutory appeal to the 3d Circuit to answer the question: "Does Federal Rule of Civil Procedure 6(e), as amended effective December 1, 2001, continue to apply to EEOC right-to-sue letters?"
Donald Marritz
MidPenn Legal Services
Friday, January 06, 2006
consumer - TILA - disclosures - creditor v. 3d party
Vallies v. Sky Bank - 3d Cir. - January 5, 2006
http://www.ca3.uscourts.gov/opinarch/051002p.pdf
Held: Single creditor bank must make all TILA disclosures and cannot rely on independent disclosure of required information by a third party seller, a car dealer
Creditor bank violated the TILA when it excluded certain debt cancellation fees from the calculation of the finance charge w/o disclosing the amount of the fees and that cancellation coverage was optional, despite the fact that the disclosures were ultimately made by a non-creditor third party, a car dealer from whom plaintiff bought a vehicle. The car dealer and bank acted independently of each other. The dealer was not the bank's agent.
The TILA in plain terms mandates that the "creditor" to make the required disclosures. The Act "clearly vests the duty of disclosure on the, and only on the, actual creditor and not on any third party to the credit transaction." The "creditor, and the creditor alone, is required to disclose...required information." The "clear language and meaning of the TILA [requires] that all disclosures be made by a single creditor....the actual creditor and not some third party." The "TILA places a clear and affirmative duty on the actual creditor itself to disclose any and all required information....[W]here the creditor fails to disclose this information, it has violated TILA regardless of the ultimate receipt of information." The court rejected the notion that its conclusion was "hypertechnical...or overly formalistic. The creditor need only follow the law...."
Donald Marritz
MidPenn Legal Services
http://www.ca3.uscourts.gov/opinarch/051002p.pdf
Held: Single creditor bank must make all TILA disclosures and cannot rely on independent disclosure of required information by a third party seller, a car dealer
Creditor bank violated the TILA when it excluded certain debt cancellation fees from the calculation of the finance charge w/o disclosing the amount of the fees and that cancellation coverage was optional, despite the fact that the disclosures were ultimately made by a non-creditor third party, a car dealer from whom plaintiff bought a vehicle. The car dealer and bank acted independently of each other. The dealer was not the bank's agent.
The TILA in plain terms mandates that the "creditor" to make the required disclosures. The Act "clearly vests the duty of disclosure on the, and only on the, actual creditor and not on any third party to the credit transaction." The "creditor, and the creditor alone, is required to disclose...required information." The "clear language and meaning of the TILA [requires] that all disclosures be made by a single creditor....the actual creditor and not some third party." The "TILA places a clear and affirmative duty on the actual creditor itself to disclose any and all required information....[W]here the creditor fails to disclose this information, it has violated TILA regardless of the ultimate receipt of information." The court rejected the notion that its conclusion was "hypertechnical...or overly formalistic. The creditor need only follow the law...."
Donald Marritz
MidPenn Legal Services
Thursday, January 05, 2006
recent ED Pa. disability decisions
Summary judgment granted to SSA in all of the following cases
1. Proffit v. Barnhart - ED Pa. December 30, 2005 -
http://www.paed.uscourts.gov/documents/opinions/06D0014P.pdf
Plaintiff's medical evidence was not extensive and fairly old. Court upheld ALJ's finding the P's subjective complaints were not credible and not supported by objective medical evidence, citing 20 CFR 404.1529(b), (c)(2) and Hartranft v. Apfel, 131 F.3d 358, 362 (3d Cir. 1999)
2. Wright v. Barnhart - ED Pa. - December 28, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1540P.pdf
The court upheld the ALJ's determination that the claimant's depression was not a severe impairment. Noting the threshold for severity is low, the court nonetheless said that the plaintiff "must still provide evidence sufficient to show that her impairment has a minimal effect of her ability to work." Holding that P here didn’t do so, the court noted that the treating physician's opinion was based "largely on the claimant's own account of her symptoms and limitations." The court also rejected the argument that the ALJ should have asked for further info from the treating physician, holding the there was sufficient evidence on which to make a decision. Finally, the claimant's complaints about pain were discounted because it was handled by "conservative treatment….there was a lack of medical evidence showing that she experienced more than moderate levels of pain or other daily symptoms…"
3. Brubaker v. Barnhart - ED Pa. - December 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1537P.pdf
a) The ALJ adequately developed the record and fulfilled his heightened duty to the pro se claimant.
b) The claimant did not demonstrate good cause for not having presented evidence to the ALJ at the time of the hearing
c) The ALJ properly rejected the treating doctor's opinion on the ultimate issue of employability, which is reserved for SSA
d) The ALJ properly explained his credibility determination -- this is the weakest part of the opinion. The court held that "although indirectly, the ALJ did explain his credibility determination by incorporating the body of his entire decision….Because I can infer from the decision what the ALJ relied upon in making his credibility determination, I find his conclusion…follows the spirit of the law…." Doesn’t the ALJ have to give a more specific reason for a credibility determination.?
e) The hypothetical posed to the VE adequately set out all credibly established limitations.
f) The ALJ considered claimant's impairments in combination.
Donald Marritz
MidPenn Legal Services
1. Proffit v. Barnhart - ED Pa. December 30, 2005 -
http://www.paed.uscourts.gov/documents/opinions/06D0014P.pdf
Plaintiff's medical evidence was not extensive and fairly old. Court upheld ALJ's finding the P's subjective complaints were not credible and not supported by objective medical evidence, citing 20 CFR 404.1529(b), (c)(2) and Hartranft v. Apfel, 131 F.3d 358, 362 (3d Cir. 1999)
2. Wright v. Barnhart - ED Pa. - December 28, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1540P.pdf
The court upheld the ALJ's determination that the claimant's depression was not a severe impairment. Noting the threshold for severity is low, the court nonetheless said that the plaintiff "must still provide evidence sufficient to show that her impairment has a minimal effect of her ability to work." Holding that P here didn’t do so, the court noted that the treating physician's opinion was based "largely on the claimant's own account of her symptoms and limitations." The court also rejected the argument that the ALJ should have asked for further info from the treating physician, holding the there was sufficient evidence on which to make a decision. Finally, the claimant's complaints about pain were discounted because it was handled by "conservative treatment….there was a lack of medical evidence showing that she experienced more than moderate levels of pain or other daily symptoms…"
3. Brubaker v. Barnhart - ED Pa. - December 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1537P.pdf
a) The ALJ adequately developed the record and fulfilled his heightened duty to the pro se claimant.
b) The claimant did not demonstrate good cause for not having presented evidence to the ALJ at the time of the hearing
c) The ALJ properly rejected the treating doctor's opinion on the ultimate issue of employability, which is reserved for SSA
d) The ALJ properly explained his credibility determination -- this is the weakest part of the opinion. The court held that "although indirectly, the ALJ did explain his credibility determination by incorporating the body of his entire decision….Because I can infer from the decision what the ALJ relied upon in making his credibility determination, I find his conclusion…follows the spirit of the law…." Doesn’t the ALJ have to give a more specific reason for a credibility determination.?
e) The hypothetical posed to the VE adequately set out all credibly established limitations.
f) The ALJ considered claimant's impairments in combination.
Donald Marritz
MidPenn Legal Services
disability - obesity - Listing 9.09 v. SSR 00-3p
Branson v. Barnhart -- ED Pa. - December 29, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1538P.pdf
The court ordered this case to be remanded. Plaintiff's claim had been filed while the Listing 9.09 was still in effect, i.e., prior to the effective date of the new SSR 00-3p. The court found merit in Plaintiff's argument that the SSR should not be applied retroactively to pending claims, citing conflicting cases from other circuits. The court found "persuasive those cases which reason that the Adminstration does not have the authority to engage in retroactive rulemaking….without express congressional authorization" and rejected the language of the SSR which states that it applies to cases filed before October 25, 1999, and still pending on that date. The court held that the claim should have been evaluated under Listing 9.09 and remanded the case.
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1538P.pdf
The court ordered this case to be remanded. Plaintiff's claim had been filed while the Listing 9.09 was still in effect, i.e., prior to the effective date of the new SSR 00-3p. The court found merit in Plaintiff's argument that the SSR should not be applied retroactively to pending claims, citing conflicting cases from other circuits. The court found "persuasive those cases which reason that the Adminstration does not have the authority to engage in retroactive rulemaking….without express congressional authorization" and rejected the language of the SSR which states that it applies to cases filed before October 25, 1999, and still pending on that date. The court held that the claim should have been evaluated under Listing 9.09 and remanded the case.
Donald Marritz
MidPenn Legal Services
Thursday, December 22, 2005
contracts - duty of good faith/fair dealing - doctrine of necessary implication
Stamerro v. Stamerro - Superior Court - December 21, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a13045_05.pdf
This case involves the interpretation and enforcement of a marriage settlement agreement. The appellate court affirmed the trial court's refusal to lower appellant-husband's contractual duty to pay a certain level of alimony.
duty of good faith and fair dealing
Pennsylvania has "accepted the principle in Restatement (Second) of Contracts, sec. 205 that 'every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcements."
The duty of good faith means honesty in fact in the conduct of transaction concerned . The duty of varies somewhat w/context . A complete catalogue of lack of good faith is impossible , but it includes evasion of the spirit of the bargain and lack of diligence
doctrine of necessary implication
This is similar to the doctrine of good faith and fair dealing. Courts employ this doctrine a s a means of avoiding injustice by inferring contract terms that reflect parties' silent intent .
Absent an express term, the doctrine may act to imply a requirement necessitated by reason and justice and to avoid frustation of the intent of the parties
Doctrines of good faith, fair dealing, and necessary implication apply in limited circumstances and cannot trump express contract provisions . They are principles for courts to use to harmonize the reasonable expectations of the parties with the intent of the contractors and the express terms in their contract.
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/a13045_05.pdf
This case involves the interpretation and enforcement of a marriage settlement agreement. The appellate court affirmed the trial court's refusal to lower appellant-husband's contractual duty to pay a certain level of alimony.
duty of good faith and fair dealing
Pennsylvania has "accepted the principle in Restatement (Second) of Contracts, sec. 205 that 'every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcements."
The duty of good faith means honesty in fact in the conduct of transaction concerned . The duty of varies somewhat w/context . A complete catalogue of lack of good faith is impossible , but it includes evasion of the spirit of the bargain and lack of diligence
doctrine of necessary implication
This is similar to the doctrine of good faith and fair dealing. Courts employ this doctrine a s a means of avoiding injustice by inferring contract terms that reflect parties' silent intent .
Absent an express term, the doctrine may act to imply a requirement necessitated by reason and justice and to avoid frustation of the intent of the parties
Doctrines of good faith, fair dealing, and necessary implication apply in limited circumstances and cannot trump express contract provisions . They are principles for courts to use to harmonize the reasonable expectations of the parties with the intent of the contractors and the express terms in their contract.
Donald Marritz
MidPenn Legal Services
Wednesday, December 21, 2005
Freedom of Information Act - waiver of fees
Community Legal Services v. HUD - ED Pa. - December 19, 2005
http://www.paed.uscourts.gov/documents/opinions/05D1502P.pdf
The court granted CLS's motion for summary judgment against HUD on CLS's request to have all fees waived for its Freedom of Information Act (FOIA), 5 USC 552 et seq., request for documents concerning Moving to Work (MTW) Demonstration Program of the Philadelphia Housing Authority, pursuant to PHA's agreement with HUD.
The Court found that CLS had "adequately shown that it satisfied the statutory requirements for a feee waiver" by showing that "disclosure of the requested documents is likely to contribute to public understanding, and that the contribution is likely to be significant."
Donald Marritz
MidPenn Legal Services
http://www.paed.uscourts.gov/documents/opinions/05D1502P.pdf
The court granted CLS's motion for summary judgment against HUD on CLS's request to have all fees waived for its Freedom of Information Act (FOIA), 5 USC 552 et seq., request for documents concerning Moving to Work (MTW) Demonstration Program of the Philadelphia Housing Authority, pursuant to PHA's agreement with HUD.
The Court found that CLS had "adequately shown that it satisfied the statutory requirements for a feee waiver" by showing that "disclosure of the requested documents is likely to contribute to public understanding, and that the contribution is likely to be significant."
Donald Marritz
MidPenn Legal Services
custody - expert opinion - discovery/use by opposing party
Lloyd v. Lloyd - Pa. Superior Court - December 20, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/a29038_05.pdf
Mother's discovery and use of report of father's expert permitted under Pa. RCP 4003(a)(3), where father procured report initially but decided not to use report or call expert at trial.
Pa RCP 4003(a)(3) bars discovery of an report of an expert who is not expected to be called as a witness at trial. Father initially indicated that he would call the expert, so the court said that the rule wouldn't apply. In the alternative, the court held that report was discoverable under the rule, because it was the report of a "medical expert," as defined by Rule 4010(b). The court said that an "expert in a child custody case, regardless of who 'hires' the expert, is very similar to a 'independent' medical examiner which is the subject of Rule 4010…An expert, whether hired by a particular party or appointed by the court in custody litigation, is an expert subject to Rule 4010…" The expert's report and findings are "discoverable by a party….regardless of the status of the expert as a witness at trial."
The court also rejected an argument that mother's late motion about getting/using the report violated the trial court's procedural order establishing a schedule and procedure. It approved the trial court's statement that "our analysis is direct and simple…Hire an expert custody evaluator and such opinion evidence will be made known to the court. To do otherwise would be a disservice to the child….[K]nowing such evidence exists and to shield such from disclosure presents a less than full and complete record. We literally can conceive of no circumstance where non-disclosure benefits the child."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/a29038_05.pdf
Mother's discovery and use of report of father's expert permitted under Pa. RCP 4003(a)(3), where father procured report initially but decided not to use report or call expert at trial.
Pa RCP 4003(a)(3) bars discovery of an report of an expert who is not expected to be called as a witness at trial. Father initially indicated that he would call the expert, so the court said that the rule wouldn't apply. In the alternative, the court held that report was discoverable under the rule, because it was the report of a "medical expert," as defined by Rule 4010(b). The court said that an "expert in a child custody case, regardless of who 'hires' the expert, is very similar to a 'independent' medical examiner which is the subject of Rule 4010…An expert, whether hired by a particular party or appointed by the court in custody litigation, is an expert subject to Rule 4010…" The expert's report and findings are "discoverable by a party….regardless of the status of the expert as a witness at trial."
The court also rejected an argument that mother's late motion about getting/using the report violated the trial court's procedural order establishing a schedule and procedure. It approved the trial court's statement that "our analysis is direct and simple…Hire an expert custody evaluator and such opinion evidence will be made known to the court. To do otherwise would be a disservice to the child….[K]nowing such evidence exists and to shield such from disclosure presents a less than full and complete record. We literally can conceive of no circumstance where non-disclosure benefits the child."
Donald Marritz
MidPenn Legal Services
Tuesday, December 20, 2005
custody - standard of review, expert opinion
King v. King - Pa. Superior Court, December 16, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/A34039_05.pdf
In a factually complicated case, the appellate court affirmed the trial court's grant of primary custody to father, over child's expressed strong preference for mother. There was no discussion at all about the child-preference issue.
standard of review -- The Court said that it was its scope of review was "very broad" but that it was "not this Court's function to determine whether the trial court reached the 'right' decision' rather we must consider whether, 'based on the evidence presented, given due deference to the trial court's weight and credibility determinations,' the trial court erred or abused is discretion in awarding custody to the prevailing party."
expert opinion - The appellate court upheld the trial's court's refusal to follow the recommendation of the custody evaluator, a psychologist, that custody go to mother, stating that the trial court had conducted two full hearings and was "in the unique position of having had the opportunity to observe all of the parties in this matter for a period of at least four years." The trial judge "detailed 96 findings of fact with an excellent analysis and interpretation of the nuances expressed by the witnesses which strongly support his conclusions. Our standard of review does not allow us to alter the court's conclusions provided they are supported by the record or unless they are manifestly unreasonable. The court's decision awarding custody to [father] is supported by the voluminous record before us."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/A34039_05.pdf
In a factually complicated case, the appellate court affirmed the trial court's grant of primary custody to father, over child's expressed strong preference for mother. There was no discussion at all about the child-preference issue.
standard of review -- The Court said that it was its scope of review was "very broad" but that it was "not this Court's function to determine whether the trial court reached the 'right' decision' rather we must consider whether, 'based on the evidence presented, given due deference to the trial court's weight and credibility determinations,' the trial court erred or abused is discretion in awarding custody to the prevailing party."
expert opinion - The appellate court upheld the trial's court's refusal to follow the recommendation of the custody evaluator, a psychologist, that custody go to mother, stating that the trial court had conducted two full hearings and was "in the unique position of having had the opportunity to observe all of the parties in this matter for a period of at least four years." The trial judge "detailed 96 findings of fact with an excellent analysis and interpretation of the nuances expressed by the witnesses which strongly support his conclusions. Our standard of review does not allow us to alter the court's conclusions provided they are supported by the record or unless they are manifestly unreasonable. The court's decision awarding custody to [father] is supported by the voluminous record before us."
Donald Marritz
MidPenn Legal Services
Thursday, December 15, 2005
civil contempt - specificity of order
McNelis, et al. v. Lear, et al. - Pa. Superior Court - December 14, 2005
http://www.courts.state.pa.us/OpPosting/Superior/out/e02003_05.pdf
This is a civil contempt case about enforcement of a settlement agreement in a property dispute matter. This may be of interest to family law advocates because of its possible application to PFA civil contempts.
Superior Court reversed lower court finding of contempt, because the lower court had not clearly set out a specific order that appellants had not followed.
The court said that the "order forming the basis for the contempt finding must be definite, clear, and specific, leaving no doubt or uncertainty regarding the prohibited conduct….It is well settled that there are certain elements necessary to support a finding of civil contempt, namely: that the contemnor had notice of the specific order or decree which he disobeyed; that the act constituting the contemnor's violation was volitional; and that the contemnor acted with wrongful intent."
In this case, the lower court had never entered an order directing appellants to do what they had allegedly not done. "Because Appellants were not in violation of a specific court order it was improper for the trial court to find them in contempt."
Donald Marritz
MidPenn Legal Services
http://www.courts.state.pa.us/OpPosting/Superior/out/e02003_05.pdf
This is a civil contempt case about enforcement of a settlement agreement in a property dispute matter. This may be of interest to family law advocates because of its possible application to PFA civil contempts.
Superior Court reversed lower court finding of contempt, because the lower court had not clearly set out a specific order that appellants had not followed.
The court said that the "order forming the basis for the contempt finding must be definite, clear, and specific, leaving no doubt or uncertainty regarding the prohibited conduct….It is well settled that there are certain elements necessary to support a finding of civil contempt, namely: that the contemnor had notice of the specific order or decree which he disobeyed; that the act constituting the contemnor's violation was volitional; and that the contemnor acted with wrongful intent."
In this case, the lower court had never entered an order directing appellants to do what they had allegedly not done. "Because Appellants were not in violation of a specific court order it was improper for the trial court to find them in contempt."
Donald Marritz
MidPenn Legal Services
Subscribe to:
Posts (Atom)